Summary Trial

Any party can apply under Rule 9 for either judgement in favour  the plaintiff or alternatively that the plaintiff’s claim be summarily  dismissed, all by trial by affidavits rather than “viva voce” evidence.
Summary trial

A summary trial is governed by R. 9-7 of the Supreme Court Civil Rules (previously R. 18A of the Supreme Court Rules).

Subrule (2) permits a party to an action, to which a Response to Civil Claim has been filed, to apply to the court for judgment under the rule, either on an issue or generally.

 

In support or response to the application for a hearing by summary trial, subrule (5) provides that a party may tender evidence in a variety of forms:

(i) affidavit;

(ii) answers to interrogatories;

(iii) examination for discovery transcripts;

(iv) admissions;

and (v) expert reports.

 

The scope of a summary trial application is set out in R. 9-7(15) of the Supreme Court Civil Rules:

 

(15) On the hearing of a summary trial application, the court may

(a) grant judgment in favour of any party, either on an issue or generally, unless

(i) the court is unable, on the whole of the evidence before the court on the application, to find the facts necessary to decide the issues of fact or law, or

(ii) the court is of the opinion that it would be unjust to decide the issues on the application,

(b) impose terms respecting enforcement of the judgment, including a stay of execution, and

(c) award costs.

30      In Inspiration Management Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (B.C. C.A.), the court confirmed that the court under this rule “tries the issues raised by the pleadings on affidavits”, that “a triable issue or arguable defence will not always defeat a summary trial application”, and that “cases will be decided summarily if the court is able to find the facts necessary for that purpose, even though there may be disputed issues of fact and law” provided that the judge does not find “it is unjust to do so” (p. 211). In determining the latter issue (whether it would be unjust to proceed summarily), the Chief Justice identified a number of relevant factors to consider (at p. 215):

 

In deciding whether it will be unjust to give judgment the chambers judge is entitled to consider, inter alia, the amount involved, the complexity of the matter, its urgency, any prejudice likely to arise by reason of delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the course of the proceedings and any other matters which arise for consideration on this important question.

 

31      To this list has been added other factors including the cost of the litigation and the time of the summary trial, whether credibility is a critical factor in the determination of the dispute, whether the summary trial may create an unnecessary complexity in the resolution of the dispute, and whether the application would result in litigating in slices: Dahl v. Royal Bank, 2005 BCSC 1263 (B.C. S.C.) at para. 12, upheld on appeal at 2006 BCCA 369 (B.C. C.A.).

 

The courts will generally not proceed with a summary trial where there are issues of credibility to be determined that cannot really be assessed by reading affidavits as opposed to viva voce evidence in a court room.

 

32      All parties to an action must come to a summary trial hearing prepared to prove their claim, or defence, as judgment may be granted in favour of any party, regardless of which party has brought the application, unless the judge concludes that he or she is unable to find the facts necessary to decide the issues or is of the view that it would be unjust to decide the issues in this manner. This requirement was underscored by Madam Justice Newbury in Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 275 (B.C. C.A.):

[34] It is trite law that where an application for summary determination under Rule 18A is set down, the parties are obliged to take every reasonable step to put themselves in the best position possible. As this court noted in Anglo Canadian Shipping Co. v. Pulp, Paper & Woodworkers of Canada, Local 8 (1988) 27 B.C.L.R. (2d) 378 (B.C.C.A.) at 382, a party cannot, by failing to take such steps, frustrate the benefits of the summary trial process. Where the application is brought by a plaintiff, the defendant may not simply insist on a full trial in hopes that with the benefit of viva voce evidence, ‘something might turn up’: see Hamilton v. Sutherland (1992), 68 B.C.L.R. (2d) 115, [1992] 5 W.W.R. 151 (B.C.C.A.) at paras. 66-7. The same is true of a plaintiff where the defence has brought the R. 18A motion.

 

The three options available to the judge on hearing a summary trail by affidavits, whether for judgment or for dismissal of the claim were discussed as follows:

In Brown v. Douglas, 2011 BCCA 521 at paras. 29 and 30, which passages were relied upon by the trial judge (at para. 24):

[29]      I should also advert briefly to an argument made by the plaintiffs at the oral hearing of this appeal – that the summary trial judge should not have proceeded at all under Rule 18A in the face of their lack of evidence as to what counsel referred to as “proof of damages”. … It was said that in the circumstances, the summary trial judge should have dismissed the defendants’ motion for judgment and permitted the plaintiffs to address this matter on a later occasion. In this regard, the plaintiffs cited the comments of this court in Placer Development Ltd. v. Skyline Explorations Ltd. (1985), 67

 

B.C.L.R. 366, where Taggart J.A. described three options available to counsel faced with an application brought against his or her client under R. 18A.

These options were:

1.               He may agree that the case is an appropriate case for a summary trial and he may decide to seek judgment on the merits in favour of his client.

2.               He may decide that it is a wholly inappropriate case for summary trial and he may decide to oppose the application for summary trial on the basis of material already filed and on the basis of additional material including affidavits that tend to show that the case is inappropriate for disposition under the rule.

3.               He may decide that the case is an inappropriate case for summary trial but he may decide to file affidavits and other material tending to show that while it is not an appropriate case for summary trial, if there is to be a summary trial the judgment should be in favour of his client [At 384-5.]

The Court went on to observe that the language of what was then R. 18A(3) – more latterly, R.

18A(11) and now R. 9-7(11) – clothes the judge with a “broad discretion” to refuse to proceed where the judge is unable to find the facts necessary to decide the issues of fact or law or if it would be unjust to decide the issues.

 

In Gichuru v Paiiai 2013 BCCA 60 it was held that there is no absolute rule that a plaintiff who ahs failed to lead sufficient evidence to prove his case, or a defendant who has failed to lead sufficient evidence to meet the case against it, will have judgement granted for or against them by virtue of that fact alone.

 

Gichuru   went on to say:

 

33.  Anglo Canadian Shipping has been cited and applied by this court on many occasions: see, e.g. Everest Canadian Properties Ltd. v. Mallmann, 2008 BCCA 275 at paras. 34; Gilmour Estate v. Parchomchuk, 2011 BCCA 207 at paras. 19; Dixon v. British Columbia Snowmobile Federation, 2003 BCCA 174 at para. 5; Strathloch Holdings Ltd. v. Christensen Bros. Foods Ltd. (1997), 29 B.C.L.R. (3d) 341 (C.A.) at para. 12.

34      In summary, the jurisprudence is clear that, subject to certain guidelines, the decision as to the suitability of proceeding by way of summary trial to determine an action (or issue), is a discretionary one. Appellate deference is given to the exercise of discretionary powers in the absence of a clear conclusion that the discretion has been wrongly exercised, in that no weight or insufficient weight has been given to relevant considerations (see Creasy v. Sweny (1942), 57 B.C.R. 457 (B.C. C.A.), at 459; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3 (S.C.C.) at para. 104; Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4th) 203 (B.C. C.A.) at para. 94, leave to appeal ref’d [2009] S.C.C.A. No. 364 (S.C.C.); and Bell v. Levy, 2011 BCCA 417 (B.C. C.A.) at para. 75), or it appears that the decision is clearly wrong and may result in an injustice (see Taylor v. Vancouver General Hospital (1945), 62 B.C.R. 42 (B.C. C.A.), at 50, [1945] 3 W.W.R. 510 (B.C. C.A.)).

35      The authorities are also clear that a summary trial, although heard on affidavits in chambers, remains a trial of the action for which the plaintiff (even if not the applicant) retains the onus of proof of establishing his or her claim(s) and the defendant (even if not the applicant) retains the burden of establishing any defence that is raised. Mr. Justice Wood, writing for the Court in Miura v. Miura (1992), 66 B.C.L.R. (2d) 345 (B.C. C.A.), clarified this issue (at page 352):

There is no reason why the onus should be reversed simply because the defendant moves for judgment under Rule 18A, thus requiring the plaintiff to prove her case in a summary trial proceeding. …

… the onus of proof does not shift simply because a trial is conducted summarily under rule 18A [now R. 9-7]. As in an ordinary trial, the party asserting the affirmative of an issue must prove it on a balance of probabilities. I believe that such a result is also consistent with what was said by McEachern, C.J.B.C. in Inspiration Management et al. v. McDermid et al. [citation omitted] at page 215 of the report:

The test for R. 18A, in my view, is the same as on a trial. Upon the facts being found the chambers judge must apply the law and all appropriate legal principles. If then satisfied that the claim or defence has been established according to the appropriate onus of proof he must give judgment according to the law unless he has the opinion that it will be unjust to give such judgment.

With respect to summary dismissal of a plaintiff’s claim the test in law is as stated in American Buildings v Surrey Iron Works (1980) 27 BCLR 145, BCCA :

13      Counsel for the appellant relied on the judgment of this court in Hughes v. Sharp (1969), 68 W.W.R. 706, 5 D.L.R. (3d) 760 (B.C.C.A.). In that case Tysoe J.A. used language, which I will paraphrase as follows [p. 709]:

[The] litigant must be allowed his day in court, and must not be deprived of a trial in the ordinary way unless it is manifestly clear that he is without a defence that deserves to be tried.

I change those latter words to “unless it is manifestly clear that his claim has no merit and does not deserve to be tried”.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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